Shrikishan Mal Lodha, J.
1. This is an application under Section 15(2)(b) of the Rajasthan Sales Tax Act, 1954 (No. XXIX of 1954) (for short 'the Act') here in after) read with Section 9 of the Central Sales Tax Act, 1956 ('the CST Act') for directing the Board of Revenue to state the case and refer the following questions of law arising out of its order dated February 16, 1979 passed in special appeal No. 2/78/ST/Jodhpur 'which it refused to do by its order dated October 4, 1979 in reference application No. 2/79/ST/Barmer:
(1) Whether under the facts and circumstances of the case the Board of Revenue was justified in holding that bardana sold along with salt is not liable to tax when there is admittedly an implied sale of bardana along with salt ?
(2) Whether under the facts and circumstances of the case the Board of Revenue was justified in holding that burden of prove implied sale lies on the assessing authority Under Section 5D to the Rajasthan Sales Tales Tax Act ?
2. Dealer non-petitioner No. 1 (M/s Ganesh Mal Roopchand, Pachpadra District Barmer) is a proprietorship firm which deals in the sale of salt packed in gunny bags (bardana) both inside the State of Rajasthan as well as in the course of inter-State trade and commerce. During the period November 20, 1964 to November 9, 1965 non-petitioner No. 1 sold salt packed in gunny bags in the course of inter-State trade and commerce while selling the salt, gunny bags in which it was packed are also said to have been sold and their price was included in the sale price of salt. The Assessing Authority (CTO Circle 'B', Jodhpur) passed the assessment order on July 31, 1969. It was held that though sale of salt was exempt from tax, gunny bags in which it was packed was not exempt. He estimated the value of gunny bags (bardana) at Rs. 68144.55 and taxed the sale at 2%. The amount of tax came to be Rs. 1362.90. Non-petitioner No. 1 had already deposited Rs. 1155.68. Non-petitioner No. 1 went in appeal. The Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur accepted the appeal by his order dated January 11, 1970. He held that the sale of gunny bags along with salt which was packed therein has not been proved. The Assessing Authority filed a revision petition before the Board of Revenue. The learned Member of the Board of Revenue vide his order, dated April 24, 1978 came to the conclusion that last proviso to Section 5 of the Act read with Section 8(2-A) of the CST Act was applicable to the present case and as the salt was exempt from tax, packing material in which it was packed was also exempt. The revision was consequently rejected. A special appeal was filed by the Assessing Authority before the Board. The Board posed the question whether bardana sold in the course of inter-State trade and commerce along with exempted goods is taxable? It held that the bardana sold along with the exempted goods was not taxable relying on M/s Sambhar Salts Ltd., Sambhar Lake v. CTO Special Circle II, Jaipur 1976 RRD 84. Consequently, it dismissed the Special appeal vide its order dated February 16, 1979. The CTO (Revision), Ajmer submitted a reference application under Section 15(1) of the Act to refer the aforesaid questions. That was rejected by the Board vide its order dated October 4, 1979 on the ground that the point involved in the case was covered by the decision of the Larger Bench reported in District Opium Officer, Bhawanimadi v. CTO, Jhalawar 1978 RRD 78. After the dismissal of the application Under Section 15(1), the present application was filed on March 25, 1980.
3. In view of Section 13(10) of the Rajasthan Sales Tax (Amendment) Act, 1984 (No. XX of 1984) which has come into force from May 1, 1985, the application under Section 15(2)(b) of the Act has been treated as a revision under Section 15 of the Act as substituted by the Amendment Act. The revision lies on a question of law.
4. We have heard Mr. K.C. Bhandari, learned counsel for the Assessing Authority and Mr. Rajendra Mehta, learned counsel for the dealer non-petitioner No. 1. The sales effected by the dealer non-petitioner No. 1 were of salt with' bardana'. The dealer non-petitioner No. 1 claimed deduction of tax free goods of packing material in all types of bardana. The Commercial Taxes Officer, Circle B, Jodhpur was of the view that the bardana which was sold along with salt as packing material was not exempted from payment of Central Sales Tax and is, therefore, assessed to tax on the sale of bardana as packing material. In appeal before the Deputy Commissioner (Appeals), it was argued on behalf of the dealer non-petitioner No. l that the Commrl. Taxes Officer (CTO) should not have estimated the sales of bardana as the bardana was supplied with salt and there was no separate sale of bardana as such. The dealer-non-petitioner No. 1 has not charged any price for bardana separately. The Deputy Commissioner (Appeals) on a consideration of the decisions of this Court as well as the Supreme Court came to the conclusion that there was no sale of bardana by the dealer when it effected the sale of salt packed in gunny bags (bardana). In view of the matter, namely, that there was no separate sale of bardana as such, he set aside the order of the CTO imposing tax on the estimates of bardana in revision. The learned Member has observed as under:
In appeal the learned Deputy Commissioner arrived at the finding that since there was no agreement between the seller and the buyer in regard to the sale of bardana, and since it had not been established that the price of bardana had been paid separately from the salt to the non-applicant firm it could not be held that there was in fact a separate sale transaction in relation to the bardana.
5. It is clear that the Deputy Commissioner (Appeals) recorded a finding of fact that there were no separate sale transactions in relation to the bardana. The Division Bench of the Borad in the special appeal has observed in its order dated February 16, 1979 that the Deputy Commissioner (Appeals) had held that the bardana was not sold separately and this finding was concurred with by the Single Member of the Board. According to the Division Bench no other view on this question of fact, namely, that the bardana was not separately sold by the dealer-non-petitioner No. 1 while effecting the sale of salt is possible. It is, thus, clear that there is a finding of fact arrived at by the Board that the dealer-non-petitioner No. 1 had not sold the bardana separately in the course of inter-State trade and commerce and that the salt packed in the bardana was sold which is exempt from payment of sales tax. It has been held by a Division Bench of this Court in Mewar Sugar Mills Ltd. and Ors. v. State of Rajasthan and Anr. that whether and in what circumstances an implied agreement to sell the packing material is to be inferred is essentially a question of fact which is to be determined by the taxing authorities on the facts and circumstances of each case. As a finding of fact was arrived at by the Board in revision which was confirmed in special appeal that there was no sale of bardana as such when the dealer non-petitioner No. 1 effected sale of salt packed in bardana is a question of fact and nothing has been shown by the learned counsel for the Assessing Authority that this finding is vitiated by any error of law. In our opinion, this application which has been treated as a revision under Section 15 of the Act does not involve any question of law. In view of this, it is not necessary for us to address ourselves regarding the applicability of the last proviso to Section 5 of the Act which came into force from July 23/24, 1967 read with Section 8(2A) of the CST. Act, though the Board in revision as well as in special appeal has dealt with this aspect of case. The position, therefore, is that in this case no question of law is involved. The application is, therefore, dismissed.
6. In the facts and circumstances of the case, we leave the parties to bear their own costs.